Candor Takes A Beating

September 15, 1991

CJudge Clarence Thomas isn't the first Supreme Court nominee to dodge questions and engage in oral gymnastics at confirmation hearings, but it would be good if he were the last.

Candor, the quality of public dialogue and the credibility of the nominees themselves all have taken a beating in these cat-and-mouse games between nominees and members of the Senate Judiciary Committee.

Does anyone believe that Judge Thomas has never discussed Roe vs. Wade, giving women the constitutional right to abortion, or that he has never reached a conclusion on whether the 1973 case was decided correctly? He told the committee that he has never discussed the case, which was decided while he was at Yale Law School. That was an incredible answer.

Law students, lawyers and people who want to make a life in government talk about such things. And even if Judge Thomas had never discussed it with anyone, could he not now venture an opinion on a case that was decided 18 years ago? "I can tell you what is in my heart," a nominee could say, while warning senators that as a Supreme Court justice, he or she would decide future cases based on the facts and the law.

Judge Thomas refuses to discuss issues like abortion because he says it might compromise his impartiality. But that seems contrived, especially because he has commented on other issues that are certain to come before the court and other cases that have already been decided.

Judge Thomas is not alone, of course, in being evasive, in recanting past positions, in refusing to let the committee know too much of his heart and mind. Justice David H. Souter was perhaps even less forthcoming during his confirmation hearings a year ago.

Everyone understands the reason for the close-to-the-vest strategy employed by Republican administrations in offering court nominees since Democrats took back the Senate in 1987: Say too much, as did Judge Robert H. Bork, and you won't get confirmed.

But the unsatisfactory result are nominees for lifetime jobs on the Supreme Court who seem to have no memory, no beliefs, no flesh and blood, no connection to the real world.

The confirmation process, as Mr. Bork says, has "degenerated to the point where it is a combination of show business and politics."

Something is terribly wrong with a process that seems to demand, and often rewards, evasion and even deceit.